The Consumer Protection Act, 2019 provides for the imposition of fines or even prohibiting the endorser of a false or misleading advertisement from making an endorsement of any product or service for a period, which may extend to one year. However, the act also provides for a waiver of such penalties or suspension if the endorsers have exercised due diligence to verify the claims made in any advertisement endorsed by them.

According to Duff & Phelps’ ‘Celebrity Brand Valuation Report’, around 50% of endorsements in India feature celebrities compared to around 20% in the United States. The same report puts the overall brand value of top 20 endorsers of 2020 in India at an estimated $1 billion. The TAM AdEx report on celebrityendorsement says that overall, more than 25% advertisements telecast on TV in 2021 were endorsed by celebrities, of these more than 85% were endorsed by film stars.

Subhash Kamath, Chairman, ASCI, said: Endorsers, particularly celebrities have a huge fan following and they enjoy the trust of millions of consumers. There is therefore a direct moral and now, legal responsibility that they bear to ensure that they do not make representations in ads that could be considered misleading. ASCI has always required celebrities to be mindful of what they endorse in advertisements, and now the law too, requires them to do due diligence in this regard.”

Similar to the Advertising Advice service offered by ASCI, Endorser Due Diligence will be confidential and non-binding and will be issued in the name of the endorser.

Manisha Kapoor, Secretary General ASCI said: “Endorsers may not always be experts when it comes to the products they push and the claims they make. The law makes endorsers liable for the advertisements they appear in, hence Endorser Due Diligence becomes a critical need. ASCI’s service that is speedy, confidential, and based on the assessment of a multi-disciplinary panel can help endorsers do their due diligence in a timely and comprehensive manner, ensuring that consumers are not misled and that the endorser too, fulfills their legal obligations.

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All advertising for virtual digital assets and services needs to follow the following guidelines:

(1.1) All ads for VDA products and VDA exchanges, or featuring VDAs, must carry the following disclaimer.

“Crypto products and NFTs are unregulated and can be highly risky. There may be no regulatory recourse for any loss from such transactions.”

Such a disclaimer must be made in the following manner so that it is PROMINENT and UNMISSABLE by an average consumer:

(a) In print or static, equal to at least 1/5th of the advertising space at the bottom of the advertisement in an easy-to-read font, against a plain background, and to the maximum font size afforded by the space.

(b) In video, the disclaimer should be placed at the end of the advertisement against a plain background. A voice over must accompany the disclaimer in text. The voiceover should be at a normal speaking pace and must not be hurried. In the case of long format video of over two minutes, the said disclaimer should be repeated at the beginning and at the end of the video. The disclaimer must remain on screen for a minimum of five seconds.

(c) In audio, the disclaimer must be spoken at the end of the advertisement. The voiceover should be at a normal speaking pace and must not be hurried. In the case of long format audio of over 90 seconds, the said disclaimer should be repeated at the beginning and at the end of the audio.

(d) In social media posts, such a disclaimer must be carried in both- the caption as well as any picture or video attachments. The disclaimer within the caption must be placed upfront at the beginning of the post. Where social media posts. or advertisements have restrictions on text in the static picture, the disclaimer must be carried upfront in the caption before the fold.

(e) In disappearing stories or posts unaccompanied by text, the said disclaimer will need to be voiced at the end of the story in the manner laid out in points (a) or (b) above. If the video is 15 seconds or lesser, then the disclaimer may be carried in a prominent and visible manner as an overlay.

(f) In formats where there is a limit on characters, the following shortened disclaimer must be used “Crypto products and NFTs are unregulated and risky” followed by a link to the full disclaimer.

(g) The disclaimer must be made in the dominant language of the advertisement

(h) In addition to the above, all disclaimers must meet the minimum requirements laid down in the ASCI guidelines for disclaimers.

(2) The words “currency”, “securities”, “custodian” and “depositories” may not be used in advertisements of VDA products or services as consumers associate these terms with regulated products.

(3)The information contained in advertisements shall not contradict the information or warnings that the regulated entities provide to customers in the marketing of VDA products from time to time.

(4) Advertisements that provide information on the cost or profitability of VDA products shall contain clear, accurate, sufficient and updated information. For example, “zero cost” will need to include all costs that the consumer might reasonably associate with the offer or transaction.

(5) Information on past performance shall not be provided in any partial or biased manner. Returns for periods of less than 12 months shall not be included.

(6) Every advertisement for VDA products must clearly give out the name of the advertiser and provide an easy way to contact them (phone number or email). This information should be presented in a manner that is easily understood by the average consumer.

(7) No advertisement for VDA products or exchanges may show a minor, or someone who appears to be a minor, directly dealing with the product, or talking about the product

(8) No advertisement may show that VDA products or VDA trading could be a solution to money problems, personality problems or other such drawbacks.

(9) No advertisement shall contain statements that promise or guarantee future increase in profits.

(10) No advertisement may show that understanding VDA products is so easy that consumers do not have to think twice about investing. Nothing in the ad should downplay the risks associated with the category.

(11) VDA products may not be compared to any other asset class which is regulated.

(12) Since this is a risky category, celebrities or prominent personalities who appear in VDA advertisements must take special care to ensure that they have done their due diligence about the statements and claims made in the advertisement, so as not to mislead consumers.

The guidelines will be applicable to all advertisements released or published on or after the 1st of April 2022. Advertisers and media owners must also ensure that all earlier advertisements must not appear in the public domain unless they comply with the guidelines, post the 15th of April 2022.

Subhash Kamath, Chairman of ASCI, said: “We had several rounds of discussion with the government, finance sector regulators, and industry stakeholders before framing these guidelines. Advertising of virtual digital assets and services needs specific guidance, considering that this is a new and as yet an emerging way of investing. Hence, there is a need to make consumers aware of the risks and ask them to proceed with caution”.

These guidelines interpret, for virtual digital assets, Chapter 1 of the ASCI code, particularly clauses 1.1, 1.4 and 1.5. that require ads to be truthful, and not mislead consumers by implication, ambiguity, exaggeration or omission, and are not framed in a way that abuses their trust or exploits their lack of knowledge.

It is important to note that these guidelines do not amount to any legal recognition or endorsement of the industry or the sector, as that is a matter of government policy. ASCI only provides self-regulation for content of ads that are permitted by law.

Manisha Kapoor, Secretary General, ASCI, said: “We have seen a spate of advertising for virtual digital assets which could compromise consumer interest in the absence of some guardrails. Use of celebrities and high decibel advertising would attract consumers to these offerings, without full disclosure of the risks. Given that this is, as of now, an unregulated space, it is even more important for advertising to be upfront regarding the risks associated with these products. Globally, this is an emerging technology and products in the virtual digital asset industry have seen significant volatility. We believe with these guidelines, advertisements would be fairer and more transparent.

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In addition to its time tested and robust complaint management system and process, the three new dimensions of ASCI’s future activities are as follows.

Helping advertisers with services that help them “get it right”. These include advisory services and research-based insight studies. ASCI has already embarked on a massive study GenderNext, that looks at gender depiction in advertising, and aims to provide new starting points for advertisers for more progressive gender depictions. ASCI is also in the process of overhauling its Advertising Advisory service, which will support advertisers at the pre-production stage. This approach will provide the necessary thought leadership, provocations and support to the advertising ecosystem to create more responsible advertising.

Gearing up for the digital age: ASCI recognizes that with the digital age, not only are consumers seeing more ads on the digital media, but also their expectations and interactions with advertisements and the media world is changing. The industry has reorganised itself to reflect this new reality. The coming together of marketing and information technology is determining how advertisements get created and consumed. Updating our guidelines and procedures to keep consumers safe in the digital age is of paramount focus for ASCI.

Deployment of technology: Use of technology tools, machine learning and AI systems to track and measure advertising content is going to be a critical part of ASCI, going forward. Technology will help ASCI be more vigilant, more real time in overseeing the sheer explosion of advertising content. Deployment of technology in its complaint management system will also enable a smoother interaction between consumers, industry and other stakeholders with ASCI.

Subhash Kamath, Chairman, ASCI, said: “ASCI has stepped into the next phase of challenges that impact the interests of consumers in new ways. With new-age challenges posed by the digital age, it is imperative for ASCI to take a leap into becoming a contemporary thought leader and add greater value to consumers, industry and all our stakeholders. The new logo represents this very interesting phase of ASCI’s journey, and the vibrant and optimistic outlook of responsible advertising. Our ideology and aim remain unchanged; however, we are now on the path to becoming a more dynamic and future facing organization.”

KV Sridhar, Chief Creative Officer (Global), Nihilent Ltd, which designed the logo, said: “The colourful logo palette denotes the vibrancy of advertising and communication itself, as well as the diversity of ASCI’s stakeholders who have taken the oath to self-regulate and create ads with responsibility. The idea of creativity with responsibility is central to ASCI. The logo also reflects the dynamic nature of media platforms and the newer interesting ways in which communication is being created and consumed today. The elegant and inclusive font reflects an organization opening up to newer kinds of stakeholders, an organization that is collaborative and demonstrates leadership in bringing together the needs of different stakeholders. It signals that ASCI is gearing up towards this fast evolving and dynamic environment of consumers and advertising.

Advertising veteran Roger C B Pereira, Founder Member, ASCI, said: The world today is remarkably different from when we started ASCI in 1985. However, what is noteworthy is that the twin principles of consumer protection and fostering creativity remain unchanged.

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Fresh from the launch of its influencer marketing guidelines, ASCI aimed to expand the discussion to what lies ahead for the sector, the impact created with the introduction of the guidelines, the challenges that have surfaced, how they can be overcome as well as regulatory necessities like monitoring and the plan that takes-off from here.

The first panel presented the content creator’s perspective. It focused on the need to balance creativity in influencer marketing with responsibility and the need to protect consumer interest. It showcased what influencers thought of the evolution of this new branch of marketing, why creative engagement works despite the labelling of content that is promoted and what brands think of it.

The panel comprised actor-influencer Karan Tacker, ASCI Secretary-General Manisha Kapoor and Founding Partner of the Collective Artists Network and CEO of BigBang.Social Dhruv Chitgopekar.

Key takeaways:

● We are observing various crossovers coming live in various formats with respect to finance, cryptocurrency, etc

● We will see the commercialisation of content creators with the evolution of technology

● We are in the midst of a major transformation. There is a tectonic shift in advertising with the COVID-19 intensifying the momentum of audiences’ and brands’ preference for digital

● Advertising is shifting decisively to digital platforms because the lockdown has accelerated digital consumption

● People are spending a lot of time on social media, so brands must recognise their responsibility to be transparent about promotional content

● ASCI has found strong allies in brands and content creators since the launch of the guidelines. Not only are they embracing labelling norms, they are seeing the benefits of it

Supporting the new normal in influencer marketing, Tacker said: “It is a myth that creative engagement and responsibility can’t go hand in hand. As we celebrate World Social Media Day, it is important that we educate new influencers, who are joining the space and contributing to our growth, to employ fair practices. In terms of importance, it is nice to have discipline and everybody should be aware of the guidelines”

Kapoor added: Many companies, brands, influencers and agencies continue to engage with us for clarifications. Since the launch of the guidelines, we have observed a significant interest and belief from all stakeholders. Complaints against influencers and brands for misleading ads in the digital space have also started coming in. The good part is, that as soon as ASCI reaches out to those influencers, the ads are either taken down or corrected within hours.”

Chitgopekar said: “The power of Influence, as we call it, is totally a new era. The market will have its own push and pull as we evolve together. The new labelling framework has given birth to an active dialogue and we believe that to be the best part because it symbolises success and acceptance. This is just the beginning; the nuances will change as we move ahead in the journey and so will the whole system.”

The second panel centred on social media and governance. The panelists were a unique mix of Indian and global advertising veterans as well as a representative of the government. While ASCI Chairman Subhash Kamath provided the Indian perspective, Guy Parker, President of ICAS and Chief Executive of ASA, UK, offered the global experience. Guillaume Doki-Thonon, Founder-CEO of Reech, spoke about why monitoring for violations of influencer marketing norms was critical and how his organisation is helping ASCI do that in India. The government point of view came from Abhishek Singh, CEO of MyGov, President and CEO of the National e-Governance Division, and MD and CEO of the Digital India Corporation.

Key takeaways:

● Influencer marketing norms exist in many countries without any adverse impact on the engagement or creativity of content creators

● The common thread across all the guidance is to remain upfront and transparent with the content you create

● Technology now has the power to sort sponsored content from un-sponsored

● With the help of a machine learning algorithm, it can be detected whether brand-influencer partnership has been disclosed or not

● Influencers are becoming more creative with their ads, which underscores the need to constantly improve the algorithm

● Many brands and agencies have reached out to ASCI for advice or course correction before the campaign is executed

● This ASCI advisory isn’t pre-approval of campaigns but to see whether they violate any norms

● The government is very keen on tapping into the expertise of influencers to raise creativity levels and engagement around its messages

● The government has collaborated with many well-known influencers to achieve more impact

● Social media in India should be used extensively to reach a larger audience and in different languages to establish stronger connections

● Awareness and communication have always been part of the government’s outreach but, so far as social media is concerned, the government can target people better and bust myths of fake news

● A great example is the awareness campaign for COVID-19, which was very impactful because of the power of social media

● Here on, the use of social media will be more video- and audio-driven with regional languages at the forefront

Asserting that the government is very keen on associating with influencers to raise creativity levels and engagement, Singh said: “We are very happy to work with influencers because of the impact and the power they wield. We collaborate with several influencers to work on social media. In addition, the government promotes the use of regional languages and Indian social media apps to increase engagement.”

Applauding the strides India has made, Parker said that influencer marketing norms exist in many countries and that there has been no impact on engagement or creativity. He added: “Influencer advertising has exploded in the past 10 years. Consumers shouldn’t have to play detective to deduce the authenticity and status of the content. The need to keep the principles of advertising intact called for guidance across influencer markets. ASCI’s guideline is a good example of high-quality guidance because it’s easily understandable, practical and pragmatic. Globally, the same principle runs through all the guidance as a common thread, which is to be upfront with people about the content you are putting out.”

Doki-Thonon, explaining the monitoring system Reech is setting up for Indian influencer marketing, said: “At the end of the day, the consumer will gain from transparency – that is now the norm of the influencer market, thus boosting the confidence of consumers. With the help of a machine learning algorithm, we can detect whether a partnership between an influencer and a brand has been disclosed or not. Influencers are becoming more creative with their ads, but the good thing is that the algorithm also learns and adapts constantly.”

The codification of the declaration of promotional content and labelling requirements are not only indicators of the maturity of Indian influencer marketing but also why self-regulation is critical for industries like advertising. Other stakeholders like brands are also modifying their marketing approach to build in greater safeguards for consumers.

ASCI.Social, a repository for everything about the influencer marketing guidelines as well as the home for a community of stakeholders, has taken off well. Not only are influencers visiting it for guidance, they are also taking the online pledge to employ only ethical practices. The platform is also a great forum for the exchange of ideas.

Kamath had the last word: “We have been focusing on bringing in more clarity in the digital space. We don’t want to just police the narrative, but help shape a more responsible one. There is a lot more that is coming up. We want to thank everyone who supported us. Ask questions, discuss, debate and join us on ASCI.Social.”

Later that evening, ASCI also participated in a Clubhouse discussion with nearly 200 creators, moderated by noted influencers Scherezade Shroff and Janice Sequeira, on how to be creative while also being responsible.

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Since the announcement of the draft guidelines, ASCI has received useful feedback that would be considered in finalising the guidelines. ASCI is delighted with the overwhelming support for the guidelines.   With the extended deadline, ASCI is looking forward to more feedback to fine tune the same.

The final guidelines, after considering the feedback, will be issued on April 15 and will be applicable from May 1st.

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In 15 cases, the advertisements have been voluntarily withdrawn by advertisers after receiving a communication from ASCI. In another 27 cases, the advertiser had removed the advertisements after the complaint was lodged but before they received communication from ASCI.  In 2 cases, the advertisers contested the complaint, but these complaints were upheld as the advertisements violated the ASCI code. Complaints against 37 advertisements are under processwhere ASCI has written to the advertiser for an explanation, and the same is awaited.

In terms of platforms, a majority of the complaints received were from Instagram (39) and YouTube (37). Cricket (55) and rummy (15) scored the most number of complaints in terms of types of games.

The guidelines addressed key concerns around the advertising of online games that involved real money. The guidelines require advertisements to not be aimed at minors, not present gaming as a possibly source of livelihood, or link it to success. In addition, the guidelines require all advertisements to carry a disclaimer regarding the risk of financial loss and the addictive nature of such games. These guidelines werebacked by the Ministry of Information and Broadcasting, which issued an advisory asking that advertisements adhere to the ASCI guidelines.

Manisha Kapoor, Secretary General, ASCI, said, “Different stakeholders have highlighted possible concerns as Online real money gaming becomes a big industry. ASCIintroduced the gaming guidelines to protect consumers and address the legitimate concerns of consumers and stakeholders. We are quite happy to note that consumers have come forward to report advertisements that potentially violate the code. We too are keeping a close eye on such advertisements and, through our association with TAM Media Research, we are monitoring the digital space more efficiently. With such steps, we hope to make advertisements for online gaming for real money winnings more transparent and safer for consumers.”

The gaming guidelines were issued after consultations with different stakeholders such as Ministry of Information and Broadcasting, the Ministry of Consumer Affairs, the Ministry of Electronics and Information Technology, industry stakeholders as well as consumer interest groups and individuals.

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To raise consumer awareness about objectionable advertisements, the Advertising Standards Council of India (ASCI) is launching the #ChupNaBaitho, a call-to-action digital campaign. The campaign is one of several initiatives planned by ASCI, for this year, to create awareness about objectionable advertisements and encourage consumers to report such advertisements. In the three-month pilot, ASCI will focus on Mumbai and New Delhi.

One of the key take-aways from ASCI’s Trust in Advertising Report – 2020, was that only 10% of consumers who come across misleading advertisements report them. Around 20% talk about the advertisements on social media, and 65-70 % of people discuss it amongst themselves or take no action. So by and large, even if consumers come across objectionable advertisements, they do not take any concrete steps to resolve the issue. The aim of this campaign is to get more consumer complaints reported to ASCI, and thereby reduce the number of objectionable advertisements in the marketplace.

Between 2018 and 2020, 9283 direct complaints were reported against 1906 advertisements. Around 57% (of these were reported in 2018-2019 and 43% in 2019-2020 by end consumers. In 2019-2020, ASCI received 4683 direct complaints against 662 advertisements – these included the ones received from consumers, 94 intra-industry, 12 fast-track, one via the government and 28 via consumer organisations. These were in addition to the large number of suo-moto complaints registered by ASCI.

The campaign would have social media posts about relevant topics and a call to action, which would tell consumers when and how to report advertisements that are offensive, misleading, make fake promises, push harmful products, etc. The campaign will go live on Instagram and Facebook along with other platforms from today.

Manisha Kapoor, Secretary General, ASCI, said: “One of ASCI’s key objectives is to turn consumers into allies. We want them to be more aware of their rights and what constitutes objectionable advertising. We want them to report such claims to us and we promise to act quickly and decisively on such complaints. The overall goal is to drastically reduce the number of misleading and objectionable advertisements. Over the last few months, we have introduced several guidelines, reports and advisories like the ones on COVID-19 advertising and Online Gaming for Real money winnings. The Trust in Advertising report that studied how much faith consumers have in advertising is another example of how focused we are towards protecting consumers. #ChupNaBaitho is another step towards this goal. We want to encourage consumers, especially the youth, to report advertisements that they find objectionable. This campaign is just the start and will be followed by other such initiatives in the year.”

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The advertisements picked up range from those selling music CDs to packaged water, non-alcoholic beverages and merchandising. Key to ASCI’s investigation is determining what are surrogates for liquor and what constitutes genuine brand extensions.

ASCI’s codes and guidelines are clear about what qualifies as a genuine brand extension. For a brand extension of a product (liquor, tobacco, etc) to be considered genuine, it must be registered with an appropriate government authority such as the Food and Drug Administration and the Food Safety and Standards Authority of India etc.

In-store availability must be at least 10% of that of the leading brand in the category that the product competes, or sales turnover must exceed Rs 5 crore per annum or Rs 1 crore per annum in each state it is distributed in. It must have a valid certificate from an independent organisation for such turnover and distribution data. Advertising for such brand extensions cannot feature what is prohibited by law or banned products. Neither can the advertising allude to or hint at products that cannot be advertised.

As per the law, advertisements for liquor brand extensions can run on TV if they have a CBFC certificate. The IPL broadcaster  for TV has confirmed to ASCI that all advertisements are checked for CBFC clearance so that they are not in violation of the Cable TV and Network Act. Keeping that in mind, ASCI has processed complaints on advertisements appearing in OTT, digital and print media.

Manisha Kapoor, ASCI Secretary-General, said: “We are being extra vigilant because the IPL is one of the biggest marketing platforms in India. We are looking at advertising across media – print, OTT, digital. When we spot potential violations, we ask advertisers to substantiate their claims of their product or service being a genuine brand extension within seven days. This includes sales, distribution and market share data that must be certified by an independent body. Only if they fulfil the criteria for a genuine extension, is the advertisement allowed to continue.  If the advertiser fails to respond within the allotted time, the complaint is taken up ex-parte by ASCI’s independent Consumer Complaints Council.”

ASCI is the self-regulatory body of the advertising industry that has as its members, agencies, advertisers, media houses and other stakeholders. Its mission is to increase consumer trust in advertising by ensuring honesty and adherence to ethics in all marketing claims.

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Covid – 19, continued to be the biggest fight which in turn led to a rise in the false claims of cure and prevention from coronavirus. Holding hands with the Ministry of AYUSH, ASCI is continuously working towards eliminating such false claims for the betterment of the society. In the month of May – June 97 such cases were flagged to the regulator.

Subhash Kamath, Chairman of ASCI throws some light, says, “There has been a flood of advertisements with dubious claims about COVID-19 cures and preventions. Especially at this time when consumers are feeling more vulnerable about the virus, it becomes more important for us as regulators to ensure that these ads don’t exploit the consumer’s anxiety.  We understand that such claims can adversely affect consumers and we are committed to work closely with the Ministry of Ayush to help eliminate such malpractices from society.”

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NS Rajan, Managing Director, Ketchum Sampark P. Ltd. was elected the Vice-Chairman and Shashidhar Sinha, CEO, Mediabrands India P. Ltd was reappointed as honorary treasurer at the same meeting.

Incoming chairman, Subhash Kamath said: “It’s a genuine privilege to accept this role as Chairman of ASCI. Having served ten years on the board, I have had the honour of working and learning from very senior and experienced leaders of the industry. More importantly, I have learned the immense value of self-regulation and the far reaching impact of the work ASCI has done over the years. Our industry today is at a crucial stage. With the digital revolution influencing brand messaging and engagement with consumers, advertising is evolving rapidly. And with the recent formation of the Central Consumer Protection Authority constituted by the government, self-regulation will be even more crucial in promoting consumer confidence and trust. As I have always said, with great creative power, comes great responsibility. So I look forward to working closely with the ASCI team to continue the good work set up by my predecessors and to introduce some newer, more future-facing initiatives as well.”

Recalling his year-long tenure at ASCI, outgoing chairman Rohit Gupta, said: “I thank all my colleagues, ASCI members and everyone who was part of this incredible journey. I am glad I was given an opportunity to drive the body that spearheaded important changes in the advertising industry. This year has been the most eventful for ASCI as we tackled several challenges. The pandemic saw many misleading ads, which were dealt with immediately. The Ministry of AYUSH reached out for help in flagging misleading advertisements regarding prevention and treatment of COVID-19.  We also signed up with TAM to monitor 3,000 digital portals for misleading claims. We successfully met the three objectives we had set: increasing our consumer base, monitoring the digital space and working closely with government bodies. I wish Kamath and the board the very best.”

Over the past year, ASCI’s independent Consumer Complaints Council met 45 times and deliberated on complaints pertaining to 3,773 advertisements. Complaints were upheld against 2,126 advertisements (versus 1,486 in 2018-19) while those against 298 were not Upheld as the advertisements in question were not considered to be in contravention of ASCI’s codes. 192 advertisements were found to be prima facie in violation of The Drugs and Magic Remedies (DMR) Act or The Drugs and Cosmetics Rules (Schedule J). These were promptly escalated to the Ministry of AYUSH or the Ministry of Health for their immediate attention. In several cases, state AYUSH officials, the FDA or the Central Council for Indian Medicine issued show cause notices to the advertisers.

It concluded with a touching tribute to Brahm Vasudeva, non-executive chairman of Hawkins Cookers and the first chairman of ASCI, who passed away in July. His commitment to self-regulation in advertising and to the ASCI cause was recalled fondly.

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